Child Support

In most states, a step-parent adoption is an easier process than other adoptions, and Montana is no exception. For good reasons, the process is streamlined when a person already acting as a parent is looking to adopt a child. In Montana, if the court is satisfied that the adoption is in the best interests of the child, it can waive the preplacement evaluation and the six-month postplacement evaluation requirements.

After the adoption, the relationship of parent and child and all the rights, duties, and other legal consequences of the relationship exists between the adoptee and the adoptive parent. The former parents are relieved of all parental responsibilities and have no rights over the adoptee except for a former parent’s duty to pay arrearages for child support.

The adoption also has an immediate impact on probate law and the rules for intestate succession. This governs what happens to a person’s property if they die without a will. Although many people believe that the government will get their property and finances if they die without a will, that’s not the case. Instead, there are rules in the law for who the property goes to if you die without a will. For a parent who dies leaving children, his property goes to his children in equal shares. And an adopted child receives the same as any other child. In other adoptions, the adoptee child does not inherit from his former parent (if that parent does without a will), but in the case of a step-parent adoption that’s not the case. There are a number of small differences in this type of adoption, and it’s important that you’re aware of them all before pursuing this course.

If you decide to pursue a step-parent adoption, the first step is to file a petition with the District Court in the county where the child and step-parent live. This asks the court to create a parent-child relationship between the child and the step-parent. The process involves substituting one parent for another. In some cases, the other parent has died or completely disappeared and this isn’t an issue. In other situation, the parent is around but not very involved. Despite an apparent lack of interest, the original parent may still raise a ruckus when asked to give up his rights. Making the original parent aware of the step-parent adoption, and giving him an opportunity to participate in it is absolutely vital to a successful action. You can’t force the original parent to participate, but if you don’t give him a real option you’ll have problems later.

Montana Step-Parent Adoptions require a number of different legal documents: Petition for Stepparent Adoption; Agreement to Accept Temporary Custody; Waiver of Parental Rights; Consent to Stepparent Adoption; Child’s Consent to Stepparent Adoption (if the child is 12 or older). And then there are two orders from the Court: 1) an Order Setting Hearing; and 2) an Affidavit of Inability to Pay.

While appealing a child custody or parenting case in Montana can be just like any other appeal, there are a few important things litigants need to know when considering whether or not to appeal the district court’s decision. Parenting/Child Custody cases can be a bit different than other appeals, even divorce appeals. Here are few things to consider before diving in to an appeal:

1. You’ll Have to Head Back to Mediation.

That’s right, even though you likely attended mediation prior to going to trial, the Montana Supreme Court will make you take another stab at resolving your case. If the parties cannot agree on an appellate mediator within 15 days of filing the Notice of Appeal, the Montana Supreme Court will simply assign you an appellate mediator. You could end up with a mediator on the other end of the state – although the Clerk of the Supreme Court does his best to nominate someone in close proximity to the parties. Your appellate mediation has to be accomplished within 75 days of the filing of the Notice of Appeal. If you settle the case, the appeal is dismissed. If not, you proceed like any other appeal.

2. You’ve Got to Have a Final Order.

Generally speaking, in order to file an appeal with the Montana Supreme Court, you have to have a final judgment or order from the district court. Aside from some extraordinary remedies, the Montana Supreme Court is not there to deal with interim issues. If you have an interim parenting plan you are dissatisfied with, you probably cannot appeal the district court’s decision. Instead, you will have to wait until you get the court’s final parenting plan. If there are still problems, an appeal would be initiated at that point.

3. It Can Get Expensive.

Think your trial was expensive? Wait for an appeal. While the overall cost will probably be less than your district court case, the cost of an appeal can rack up pretty quickly. Your appellate attorney will have to do a huge amount of research and briefing to adequately prepare your case for the Montana Supreme Court. When it comes to parenting and child custody cases, there is often no cap on the amount of money a parent will spend.

4. It Can Take Time.

You have probably already experienced a fairly slow moving district court case. Depending on the county you live in, it may have taken well over a year for your case to get to trial. In recent years, the Montana Supreme Court has made it a point to clear up their backlog and push cases along as quickly as possible. They have truly succeeded and the time cases spend at the Supreme Court is often much shorter than the time spent in district court. Still, litigation just takes time. For litigants it can feel like forever. Plan on your appeal taking at least 6 – 8 months.

5. Its Tough to Do-It-Yourself.

While there are many family law proceedings that parties can handle on their own (particularly if the case is uncontested), an appeal is not really the time to try your hand at lawyering. Because appeals involve a great deal of legal research and briefing, it is important that you find someone with experience to help you. In particular, you want to find a lawyer that has experience with appeals and enjoys doing them. Your trial lawyer might be great, or they may refer you on to someone else. Either way, if you are going to go to the time and expense of appealing, make sure you find someone to help.

There is now an online Montana Child Support Calculator that actually determines child support according to the DPHHS guidelines. At www.mtchildsupport.com you can use an automatic calculator to determine your child support payments based on the numbers you input. For years, attorneys have had access to software they could install on their computer which would do the same thing. Now, this is available to everyone.

I’ve been using a preview version to help out for the past couple of months, but it isn’t quite available to the whole public yet. But if you contact the child support calculator team and give them your email address, they’ll send you a discount code good for whenever they launch.

I’ve tried other online calculators before, but none of them actually follow Montana’s guidelines. They lure you in with the promise of a free child support calculation and then use a generic formula that doesn’t reflect Montana’s guidelines at all. This site, on the other hand, not only calculates child support correctly according to the latest formula from DPHHS, but it also creates printable documents in the proper format.

Currently, the charge is $47 for 30 days unlimited access. But follow that link above and you can get a discount. During those 30 days you can create as many different calculations as you want. Try playing around with different numbers to see how it changes the bottom line. At the end of the 30 days you can’t make any changes to your calculations or create new calculations (without purchasing additional time), but you can continue to print any calculations you’ve already created for a year. And you can access those calculations from any computer that’s connected to the internet.

We Montana Divorce Lawyers don’t get new toys very often, so you’ll have to excuse me if I’m over excited.

When I sit down with a client for the first time, very few say to me, “Marybeth, I want this to be expensive, take forever, and be a generally horrible experience for all involved.” Instead, most clients hope their divorce can be like ripping off a bandaid – quick, easy, and with minimal pain. While we cannot always accomplish that goal, the way we start a case can have a dramatic effect on the cost, time frame and overall experience.

Before diving into divorce litigation, consider your alternatives to “regular” divorce litigation. If you have an ex that wants to make it a less painful process, you may find that you can get in and out of the divorce process with minimal scar tissue.

Do-It-Yourself Divorce

Divorce can be very complicated, both legally and financially. If not handled correctly, you can make mistakes that will have major consequences. Generally speaking, I discourage most people from trying to do their divorce completely on their own. It is well worth the few hundred dollars it will cost to at least sit down with an attorney to evaluate your case.

However, there can be cases where a Do-It-Yourself divorce makes sense. For example, if you’re marriage was very short, you did not accumulate property or debts during your marriage and you don’t have any children. In other words, if the only thing you are trying to handle is ending the marriage, a Do-It-Yourself divorce might be a possibility.

Mediation

In divorce mediation, rather than the parties retaining attorneys to fight, a divorcing couple works with a neutral mediator who helps both parties come to an agreement on all aspects of their divorce. The mediator may or may not be a lawyer (although I suggest you utilize a lawyer). The mediator MUST be a neutral party and cannot advocate on the behalf of one party or the other. They may, however, bring up issues you and your spouse hadn’t thought about and suggest that you and your partner work those issues out in mediation.

If mediation works, it can be fast, effective and affordable. If it does not work, you may have spent time and money that would have been better spent on litigating your case. Mediation is a good option in a large number of divorce cases. If you have concerns about disclosure of assets/liabilities or there are abuse concerns, mediation probably isn’t for you.

If you do mediate, make sure that you have an attorney review any agreement BEFORE you sign it. Once it is signed, it may be too late to make changes.

Collaborative Divorce

Although not particularly popular in Montana, collaborative divorce can be a great idea. Basically a collaborative divorce is when a couple agrees to work out a divorce settlement without going to court. During a collaborative divorce both parties retain their own attorney. Instead of simply advocating for your position, the attorneys will assists their client in negotiating a settlement agreement. The collaborative process may also involve other neutral professionals such as an accountant or financial planner, who will help the parties work out agreements on financial issues. You may also see a counselor or guardian ad litem involved to assist the parties in reaching agreements on parenting.

A collaborative divorce generally includes an agreement that the attorneys involved will only assist the clients during the collaborative process. In the event an agreement cannot be reached and limitation ensues, the attorneys may have to withdraw and the parties may have to start from scratch with new counsel.

If a divorce is particularly heated, the collaborative process might not be very successful. When financial issues are complex or there is a lack of disclosure, collaborative divorce may not be the thing for you.

In general, if there are concerns that your spouse is hiding assets/income, if there are abuse concerns or a history of domestic violence, or if there are drug or alcohol issues, see an attorney before initiating one of the divorce litigation alternatives. As always, ensure that you speak with an attorney before you sign on any dotted line.

Technically, child support is defined by Montana statutes. Really though, the statutes just assign the job of determining a formula for child support to the Department of Public Health and Human Services (DPHHS). The department is an administrative agency, tasked with maintaining a formula for determining child support and enforcing child support across the state. This does not mean that the Courts have nothing to do with determining child support, but that relationship is complicated and a topic for another day.

DPHHS is made of a number of different departments including the Child Support Enforcement Division (or CSED). CSED’s mission is to diligently pursue and ultimately achieve financial and medical support of child by establishing, enforcing, and increasing public awareness of parental obligations. Their services include: locating absent parents; establishing paternity; establishing financial and medial support orders; enforcing current and past-due child support; offering medical and spousal support; and modifying child support orders.

In order to determine what a parent may owe (or be entitled to) in child support, the department has created the Child Support Guidelines. This is a large formula that results in an amount owed by one parent to another. This amount is presumptively correct, and generally reflects what the actual payment in child support will be. The guidelines take into account a huge number of factors including all the income that both parents receive during a year from ALL sources. It also factors in deductions, time spent with the children, costs of the children, costs of travel to exercise visitation, and a huge number of different factors. You can see the worksheet by clicking on this link.

Like any formula, the result is only as accurate as the numbers you start with. And while you may have access to your own financial information, it may be difficult to find information about your co-parent’s financial status. Montana law mandates that all parents involved in a child support action complete a Child Support Affidavit under penalty of perjury. Theoretically, this document should supply the other parent with enough information to correctly complete the guideline calculation. If you believe that your co-parent is hiding information, assets, or income from you, the best course of action is to speak with a Montana child support lawyer. If you are representing yourself, it is also important that you draw these concerns to the Court’s attention.

Child support calculations are important, and unavoidable. A parenting plan action in Montana is required to also include provisions for child support and medical care. And, raising a child is expensive. While it may not seem like an important issue now – down the road it will.

Anyone facing the end of a marriage wants a trustworthy, dedicated family law specialist who has experience with financial advisers, forensic experts and health care professionals. For residents of Missoula or Missoula County, Marybeth Sampsel of Measure Law Office is exactly that.

Not only is divorce incredibly difficult, but it’s also emotional. This is an explosive combination that can make everything worse. An experienced divorce lawyer, in Missoula or the rest of the country, understands that burden and represents all your needs. Sometimes, a guiding hand is as important as technical legal advice. This is the philosophy I bring to all my divorce and child custody cases, and it’s one I know my clients appreciate.

When children are involved, a deft touch is even more important. In cases of child custody or parenting plan modifications, I pride myself on representing my clients by also representing their children. While some lawyers build a reputation on being adversarial “trial lawyers,” I see no reason to create conflict and strife unnecessarily. A good lawyer can be a zealous advocate without adding stress and aggression to an already tense situation.

Although my office is located in Kalispell, I represent divorce clients across the state. Modern technological developments make it as easy to communicate and share documents with clients in Missoula as anywhere else. If you need a Missoula divorce attorney, please call me today at (406) 752-6373 to schedule a consultation.

Over the last several weeks I have been blogging about what to expect at hearings or trials in Montana divorce (dissolution) or Montana parenting cases. For more information, see Part 1 and Part 2 and Part 3 and Part 4 of this series. Today’s blog is about preparing to testify at a hearing or trial.

Once again, it is necessary to give a WARNING: Because the bulk of my practice is in Flathead County District Court in Kalispell, this series is most relevant to my local court. Scheduling, practice and procedure can very from county to county and even from judge to judge. Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case. Call your local Montana District Court courthouse to find out when to see your judge in action.

If you do have an attorney, you will be sworn in (i.e. swear to tell the truth, the whole truth, and nothing but the truth so help you God) and will take the witness stand. Your attorney will have the opportunity to ask you questions first – this is called “direct exam.” Your attorney’s questions will be “non-leading” questions. This means that they will generally be open-ended questions that cannot be simply entered with a “yes” or “no” answer. Non-leading questions often begin with who, what, where, or when. On direct exam, it is your opportunity to tell your side of the story. Your goal, however, is to tell your story fully and completely without being long-winded or giving irrelevant information.

If you are not represented by an attorney at your hearing or trial, the Judge may have you testify from your seat at the counsel table, rather than take a seat at the witness stand. Even if you do not take the witness stand, the Judge will still have you sworn in and you will be expected to testify truthfully. If you do not have an attorney, you will not have someone asking you questions on direct exam. Instead, the Judge may ask you questions or the Judge may just ask you to tell him/her whatever you feel is important. Even without an attorney, your goal is the same. Tell the Judge your side of the story without wasting the court’s time.

Once you are done testifying on direct, the other side will have the opportunity to cross-examine you. During cross-exam, the adverse may ask you “leading” questions, or questions that are designed to lead you to a certain answer or conclusion. You may get questions that being with, “isn’t it true…” or “won’t you admit that….” Generally the adverse is looking for a yes or no answer, but you may be unable to answer a question with simply yes or no. If the other party does not have an attorney, the court may allow the person to ask you cross-exam questions. As you can imagine, cross-exam can turn ugly when no attorneys’ are involved, so the Judge may handle the case a bit differently to avoid a verbal altercation between parties in court.

After cross-exam, your attorney can come back and ask you some additional questions to clean up any issues that may have arisen during cross-exam. This is called re-direct. Your adverse can then do re-cross, your attorney can do re-re-direct, and so on. It can go on and on!

During your testimony, the Judge will be assessing many things about you – not just what you say. Some of the things the Judge will be considering are the following:

1. Truthfulness. Does a witness seem to be telling the truth? Does the witness have reason to lie? Would the witness gain anything by lying? Does this witness seem/appear truthful?

2. Impeachability. Is there something about this witness that makes them unreliable or would diminish the value of their testimony?

3. Demeanor. Does the witness seem confident, nervous, afraid, etc? Did the witness dress appropriately for court? Does the witness treat the Judge and other court personnel with respect?

Testifying in court can be extremely nerve-wracking. The more prepared you are, the better you will feel. Again, I urge anyone who will be testifying in court to go watch a hearing or trial.

Over the next several weeks, I will be posting a series of entries regarding what occurs at Montana divorce or parenting trials and hearings. For more information, see Part 1 and Part 2 of this series. Today’s blog post focuses on the CONTESTED HEARING.

As I have mentioned in my previous posts, this series is geared specifically towards hearings and/or trials in Kalispell (Flathead County District Court). Each Judicial District is different and I encourage all litigants to learn the local rules of their Judicial District (which can be found on the Montana Courts website). I also strongly encourage litigants to visit the courthouse and sit in on a proceeding, particularly a similar case and with the same judge that is assigned to your case. You will learn far more by observing your judge and seeing how your local court runs than I can explain in a blog post!

The contested hearing is what people really think of when they imagine going to court. Basically a “mini trial,” the contested hearing is often several hours long and allows both parties the opportunity to present witness, present evidence, and give testimony about the circumstances of their case. In Montana family law cases, contested hearings are often seen for interim matters – i.e. matters that need to be determined at the outset of a case, long before a final trial takes place. You might have a contested hearing on an interim parenting plan, interim child support, interim maintenance and so on. Contested hearings are also common after the divorce or parenting case is finalized, when new issues arise. For example, a parenting plan that needs to be modified or child support modifications generally result in contested hearings.

In Kalispell family law cases, it is not uncommon to have a contested hearing last as little as one hour or as long as four hours. Some cases take less time, some take more. Our Judicial District is incredibly busy and the Court simply does not have the time or resources to give every case 4+ hours. I encourage unrepresented litigants to be prepared enough to present their side of the case in 30 minutes, keeping in mind that they may actually be allowed an hour or more. And be aware just because you are given more time, does not mean you HAVE to use it.

If a contested hearing has been scheduled in your case, chances are it will be scheduled at 9:00 a.m. WARNING: CHECK THE ORDER SETTING CONTESTED HEARING YOU RECEIVED FROM THE COURT! Do not rely on this blog post as a means of determining what time your hearing will take place. If you are unsure what time your hearing is scheduled for, call the court and find out. I repeat – do not rely on this post to determine what time your hearing will take place.

With that warning out of the way, often times in Kalispell District Court, contested hearings are scheduled for 9:00 a.m. When you get to court, you will notice that several other cases will likely be scheduled for 9:00 a.m. as well. Obviously, you cannot all present your cases to the judge at the same time. So, your judge might call the cases one by one (which will require you to hang out at the courthouse until it is your turn), or your judge might schedule the hearings throughout the day after taking “roll,” and determining how much time each case will need.

The most important thing to understand about scheduling, is that you MUST be at the courthouse at the time your hearing is set, even though your case may not be heard until later in the day. Also, if you are employed, plan to miss the entire day of work. Even though the Order setting your hearing says 9:00 a.m., you may not go in front of the judge until late afternoon.

In the following days/weeks, watch for additional posts on the contested hearing. I will be explaining what order things happen in (i.e. who goes first); what to bring with you to court; and what the court/judge expects from you.

There is a great deal of valuable and reliable information available for divorce litigants regarding how Montana family law works and where to find forms to file. However, there seems to be a lack of information on how divorce procedure works. This leaves many litigants, particularly unrepresented litigants, completely terrified of walking into court. Though it is impossible to convey the finer points of trial advocacy through a blog, some basic tips about what to expect when you walk in to court can help ease some of that anxiety.

Over the next several weeks I will blog about Montana divorce and parenting hearings and trials – how they work, what happens, and how to prepare. Because the bulk of my practice is in Flathead County District Court in Kalispell, this series is most relevant to my local court. Scheduling, practice and procedure can very from county to county and even from judge to judge. Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case. In Kalispell, you can access each of the Judges’ court schedules (also known as the “docket”) online. Nearly all court proceedings are open to the public, so do not hesitate to go see the courtroom, watch your judge in action, and become familiar with how your judge runs her/his courtroom. I find that seeing where your hearing/trial will take place and watching how your judge works calms a massive amount of those pre-hearing jitters.

If you are involved in a divorce case, you can pick out a hearing for another divorce case. You will know it is a divorce case because the case will be called “In re Marriage of____.” For parenting cases, find a case called “In re Parenting of ______.” Though the online docket does not tell you what kind of hearing it is (i.e. child support, contempt, interim parenting, etc.), you can always contact the Clerk of District Court to find out what kind of motion the hearing is about.

This is Part 3 of a series dedicated to appealing Montana divorce cases or Montana parenting cases. See Part 1 and Part 2 for more information.

Though there are several other documents that are required in throughout the appellate process, the “guts” of the case is set forth in a brief filed by each party. A brief is a written argument filed by each party that explains why that party should win. The brief explains to the Montana Supreme Court the facts of the case, the procedural posture (what happened at district court) and the argument of law.

Once the Supreme Court has made their decision, it will be set forth in an opinion. The opinion is a written explanation of the Court’s decision. Past decisions by the Montana Supreme Court can be located at the Montana Courts website. The Montana Courts website also provides copies of the briefs filed by each party.